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In the wake of last week’s Supreme Court of Canada decision finding anti-gay crusader William Whatcott guilty of hate speech, those of us who support freedom of expression are plagued by a burning question: What made Chief Justice Beverley McLachlin go over to the dark side?

For 22 years, free-speechers have cherished the hope that another case involving censorship and human rights legislation would come before McLachlin. That’s because in 1990, before becoming chief justice, she wrote dissenting judgments in two cases, Taylor and Keegstra. Her opinion then was that the censorship sections of the Canadian Human Rights Act (CHRA) and the Criminal Code violated the Charter guarantee of freedom of expression, and that the violation was not justified in our free, democratic society. She therefore voted to strike down the censorship clauses as unconstitutional.

McLachlin was outvoted in both Taylor and Keegstra by the narrowest of margins: 4-3. The majority of the 1990 court found both the CHRA and the Criminal Code provisions constitutional. However, McLachlin penned a long and eloquent paean to freedom of expression, recounting its historical value as “an essential precondition of the search for truth,” a promoter of the “marketplace of ideas” and “an end in itself, a value essential to the sort of society we wish to preserve.”

Free-speechers hoped that, given another opportunity to exert her influence among an entirely different panel of Supreme Court judges (she is the only member of the 1990 court still on the bench), she would be able to sway a majority to her 1990 views.

Instead, she herself has apparently abandoned those views, voting with a unanimous court (6-0) in the Whatcott case to uphold the main censorship clause of the Saskatchewan Human Rights Code.

We will probably never know what persuaded McLachlin to change her position. Judges don’t discuss such things. But it was dismaying to learn that she is no longer the court’s champion of free expression, and that not a single member of the court stepped up to assume that mantle.

Instead, the court reiterated the absurd thesis that it had propounded in the Taylor case: That it is possible for tribunals and courts to apply prohibitions on hate speech objectively, without lapsing into subjectivity. They can do this, supposedly, by keeping in mind that “hatred” refers only to “unusually strong and deep-felt emotions of detestation, calumny and vilification.”

But the history of the Whatcott case itself plainly demonstrates this thesis to be false. Before reaching the Supreme Court of Canada, Whatcott was heard by the Saskatchewan Court of Appeal, where all three judges knew the Taylor test and applied it. They held that the four anti-gay flyers distributed by William Whatcott were legal.

They wrote, “When examined in the context of a debate about the actions of the Saskatoon School Board, the entire flyer would not be seen by a reasonable person as communicating the level of emotion required to expose persons on the basis of their sexual orientation to a level of hatred within the meaning of that term as prescribed.”

The judges of the Supreme Court, looking at the same flyer and applying the same test, found the opposite.

The judges of the Saskatchewan Court of Appeal didn’t just fall off the turnip truck the day before writing their decision. They are lawyers and jurists of long experience. In fact, they are among the small, select pool of legal talent from which future Supreme Court judges are ordinarily drawn.

So how can anyone logically account for the diametrically opposed opinions of the two courts except to say that the illegality is very much in the eye of the beholder? In short, the test is hopelessly subjective.

This subjectivity is confirmed by the fact that the Supreme Court actually exonerated two of Whatcott’s four flyers, but two lower decision-makers — the Saskatchewan Human Rights Tribunal and the Saskatchewan Court of Queen’s Bench — both acknowledging and presumably applying the Taylor test, had pronounced those two flyers illegal.

When people in positions of authority purport to apply the same test but arrive at opposite conclusions, our society has a huge problem. These apparently random outcomes mean that no one can ever know ahead of time whether their words are legal or not. This will chill expressions of opinion in ways that are sure to be detrimental to society, for all the reasons that McLachlin described in 1990 but apparently no longer values.

The final ugly blemish in this Supreme Court decision is the order that William Whatcott pay the legal costs of his opponent, the Saskatchewan Human Rights Commission, from start to finish of this sordid affair.

It seemed to escape the court’s attention that Whatcott’s efforts had been partly successful: They had exonerated him on two of the four charges of which he had originally been found guilty.

They also seemed to have forgotten that they themselves, in the very same decision, had effectively struck several words out of the Saskatchewan Human Rights Code — namely, the vague prohibition on speech that “ridicules, belittles or otherwise affronts the dignity of” individuals without reaching the level of exposing someone to hatred.

This rectification of the legislation to comply with the Charter would not have occurred without the efforts of Whatcott, and for that he should have been given credit.

The costs order departs so markedly from what would normally occur under circumstances of divided results that it appears purely spiteful. It was definitely unworthy of our highest court.

Karen Selick is litigation director at the Canadian Constitution Foundation.

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Supreme Court of Canada ruling a blow to free speech

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